Supreme Court Ends Eviction Moratorium

The Centers for Disease Control (CDC) forced the United States Supreme Court to legally slap the agency (and the Biden Administration) exceptionally hard in Alabama
Association of Realtors, et al. v. Department of Health and Human Services. The Court had performed legal backflips to allow the CDC to save face in the case with its June 29, 2021 ruling. It held the CDC Eviction Moratorium was invalid because it exceeded the CDC’s legal authority, but the Court allowed the CDC Moratorium to remain in place because it was only matter of weeks until the moratorium expired anyway (on July 31,2021).

President Biden responded with a call on the CDC to renew the moratorium, even while acknowledging that it was illegal, which the CDC did on August 3, 2021. The Supreme Court reacted with lightning speed (by federal court standards) in issuing its decision on August 26, 2021, holding that “It strains credulity to believe
the CDC has been granted the sweeping authority that it asserts.”

The Court compared the CDC moratorium as the equivalent to mandating free grocery delivery to homes of the sick, requiring manufacturers to provide free computers to enable people to work from home, or telecommunication companies to provide free high-speed Internet service to facilitate remote work. The Court’s finding that the CDC’s authorization is little more than to quarantine the sick and prohibit the import or sale of animals known to transmit disease calls into question many of the CDC’s other excesses over the last year.

To understand the hubris of the CDC and the Biden Administration in ignoring the original ruling of the Court and the constitutional crisis that was created by the CDC’s decision to elevate this issue to a titanic game of chicken with the Court requires a little background on how the Supreme Court typically functions and
some of its underlying goals. The Supreme Court tries to stay in its lane. Each of the Court’s words are consumed by legal scholars and litigants across the country and used as a source to predict the outcome
of future cases. Consequently, the Court consistently decides issues as narrowly as they can be decided (which is a constant source of aggravation to those looking for greater levels of legal change). It endeavors to make new decisions as consistent as possible with all past decisions and does all it can to avoid talking in
broad and sweeping terms.

This is particularly true when the Court is analyzing administrative agency action. The growth of administrative agencies like the CDC began with depression era legislation. Initially there was great legal hostility to the powers of these agencies (based in part on separation of powers arguments) as many saw the exercise of administrative rulemaking as unconstitutional. The disputes eventually led to threats of court
packing (arbitrarily appointing more than 9 justices to the Court to achieve a different outcome on decisions). Since that time, the Court has been very hesitant to weigh in with serious restraints on administrative agency
power. The CDC clearly miscalculated that the Court would continue to be afraid to curb administrative agency action.

The timing and the speed of the Court’s decision is also fascinating. The Supreme Court maneuvered the case to issue its decision even before the case had been fully litigated through the Court of Appeals. The CDC, like many agencies and executive branches across the country, had been taking advantage of the expense and slowness of litigation to enact sweeping and unlawful policies, betting that legal remedies would be too slow to have any practical effect.

The invalidation of the CDC’s illegal eviction moratorium won’t change a lot for most housing providers. The eviction process is expensive and takes about 3 months in Colorado from start to finish. A housing provider doesn’t make any money on empty apartments. Consequently, housing providers will continue to work with residents to find ways to make their contracts work, using an eviction lawsuit only as a last resort.

However, housing providers will once again be free to rent properties to higher risk customers. One of their tragic and unintended consequences of the CDC deciding to insert itself into the nation’s housing markets was the unintended consequence of making it more difficult for people with poor credit to rent. When there’s not a reasonably predictable and reasonably priced way to get something back when you loan it out, the only alternative becomes not to lend it out in the first place. The real tragedy of the CDC’s foolishness and hubris is that it caused the denial of the housing to so many.

Colorado housing providers know what few others want to believe. Rent payments have remained strong and steady. 97% of Colorado rent payments were made in the month of July 2021. This is a continuation of rent payments being only about ½ a percentage point off normal throughout the entire period of virus-related closures and the resulting economic upheaval. Evictions have been historically low. Only 1,989 evictions actions (52% of normal) were filed during July 2021 throughout the entire state of Colorado (population 5.8 million people). There is neither a crisis with rent payments nor a crisis with pent-up impending
evictions. However, crisis mongering and exaggerated claims of economic instability and housing displacement continue to be taken at face value.

Unfortunately, the adage that we get the government we deserve remains true. We all continue to behave like
teenagers standing in a long line at a Halloween haunted house anxiously anticipating the rush and thrill of being scared. It should be no surprise that agencies like the CDC are unable to resist the populist urge to artificially scare us by excessive degrees.

We have seen that there is a massive amount of money to be made in peddling panic. However, panic has a price. Our economy and the liberties we have taken for granted (but on which providing housing depends) will continue to be sacrificed until we get control of ourselves and stop consuming fear mongering like crack cocaine.

Drew Hamrick is the Senior Vice President of Government Affairs for the Colorado Apartment Association.